Applying Rule 403 in Child Pornography Cases

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Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . needless presentation of cumulative evidence,” or other factors. There’s considerable case law about the application of Rule 403 to photographs of homicide victims. A recent case from the Third Circuit raises important questions about how Rule 403 applies in child pornography cases.

A short summary of United States v. Cunningham is as follows. An officer determined that a computer at a particular IP address was sharing child pornography over a peer-to-peer network. The officer traced the IP address to a particular residence, then obtained and executed a search warrant for the home. The defendant and his two siblings lived there. The only computer, which contained a substantial amount of child pornography, was in the defendant’s room. The defendant admitted searching for, downloading, and saving child pornography on the computer. He was charged in federal court with child pornography offenses.

Notwithstanding his confession, the defendant pled not guilty. Prior to trial, he offered to stipulate that the materials obtained by the officer through the peer-to-peer network and from the computer were child pornography. His defense was that someone else used the computer to commit the crimes. He filed several pretrial motions asking the judge to limit, under Rule 403, the amount of child pornography the government could show to the jury. The judge, without viewing the evidence, required the government to disable audio on any video clips it showed but otherwise generally allowed the government leeway to introduce “representative samples” of the child pornography. In the end, “the District Court allowed the government, over [the defendant’s] objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.”

The defendant was convicted and appealed, arguing that (1) the district court erred in failing to view the videos before ruling on the Rule 403 motion, and (2) that the videos were unduly prejudicial and cumulative and should have been excluded. A panel of the Third Circuit unanimously agreed with both points. First, it stated that in most cases, “a district court should know what the challenged evidence actually is – as opposed to what one side or the other says it is,” before ruling on a Rule 403 objection. Second, it described the videos in gruesome detail and concluded that, at a minimum, certain videos showing young children in bondage being sexually abused were unduly prejudicial because “their violent and sadistic character likely created disgust and antagonism toward Cunningham which risked overwhelming prejudice toward him.” (Slip Op. at 38, internal quotation marks and citations omitted.) The court also gave significant weight to the fact that the defendant had offered to stipulate that the materials were child pornography, though it did note that a defendant generally cannot avoid the impact of the prosecution’s evidence by stipulation.

The interaction of child pornography, defense offers to stipulate, and Rule 403 appears to be the subject of considerable interest, and some disagreement, in the federal courts. See, e.g., United States v. Loughry, 660 F.3d 965 (7th Cir. 2011) (defendant was charged with distributing child pornography featuring the “lascivious exhibition” of children’s genitals; over objection, prosecution was allowed to introduce “hard core” child pornography the defendant possessed at home, which included sexual contact between adults and children; trial judge violated Rule 403 “in admitting the ‘hard core’ pornography without examining it, in not explaining its reasoning under Rule 403, and in admitting the evidence even though it was highly inflammatory and had only minimal probative value”); United States v. Caldwell, 586 F.3d 338 (5th Cir. 2009) (no Rule 403 error where trial judge allowed prosecution to play short video clips of child pornography to the jury, notwithstanding the defendant’s offer to stipulate that the material contained child pornography); United States v. Schene, 543 F.3d 627 (10th Cir. 2008) (no Rule 403 error in displaying multiple images of child pornography to the jury notwithstanding the defendant’s offer to stipulate that the images contained child pornography; court relied on the similar ruling in United States v. Campos, 221 F.3d 1143 (10th Cir. 2000), and noted that most of the challenged images were the very crux of the charges against the defendant); and United States v. McCourt, 468 F.3d 1088 (8th Cir. 2006) (no undue prejudice under Rule 403 where government played seven short video clips of child pornography, again notwithstanding the defendant’s offer to stipulate).

In North Carolina, the only case that I could find that touches on the issue is State v. Galanis, 2007 WL 4105829 (N.C. Ct. App. Nov. 20, 2007) (unpublished) (no violation of Rule 403 where state published child pornography photographs to the jury, then displayed them again on a large screen during cross-examination of the defendant). If readers know of others, please post a comment or send me an email.

I must admit that I didn’t find Cunningham persuasive. I’m sure the videos were revolting; I struggled even reading the court’s narrative summary of their contents. But the heart of the court’s reasoning is its concern that a jury might be so enraged by the videos that it would conclude that the defendant is a “bad person and deserves punishment, regardless of whether [he] committed the charged crime.” (Slip Op. at 31, internal quotation marks and citation omitted.) That concern makes sense when the evidence at issue is collateral to the charged offense, but it doesn’t make sense here. The videos were the crime, and the defense was that someone else downloaded them. If the jury accepted the defense, why would it conclude that, even though the defendant didn’t download the videos, the defendant nonetheless was a bad person deserving of punishment? Further, the prosecution played only two minutes’ worth of clips. Reasonable minds can certainly differ on this point, but that seems relatively restrained to me.

Even assuming arguendo that it was error to admit the videos, the court’s decision to award a new trial is suspect. Its harmless error analysis, (Slip Op. at 40-41) is almost nonexistent. The court never considers the strength of the government’s case (based on the opinion, it seems to have been quite strong) nor does it analyze likelihood of a conviction even in the absence of the two videos the court condemned (again, this appears to be pretty high based on the facts in the opinion). Appellate rulings finding error but declaring it harmless are sometimes unsatisfying or even contrived, but reading the facts of this case, it’s hard to resist the conclusion that if there was error, it had no impact on the jury’s verdict.

Finally, I can’t resist noting that after criticizing the district court for ruling on the Rule 403 issue without viewing the videos, the Third Circuit panel admitted that it also did not view the videos. (Slip Op. at 37.) The court’s explanation that the videos were “not presented” strikes me as awfully weak, since all exhibits to district court proceedings are part of the record on appeal and are available to the appellate court upon request.

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